1. There are two major differences between the compensation system of industrial injury insurance and the compensation system of tort damage.
First, the legal value is different. Tort damage compensation system belongs to the legal system in the field of private law, and its key point is to punish and educate the actor through damage compensation. The compensation system of industrial injury insurance belongs to the legal system in the field of social law. Its legislative purpose is not to investigate who is at fault, but to provide compensation for the victims' damage by raising insurance premiums. It focuses on the overall interests of society, not personal interests.
Second, the scope and standards of damages are different. The purpose of tort compensation is to punish the infringer and fill the damage of the victim. The legislation of all countries basically adopts the principle of comprehensive compensation, including material damage compensation and mental damage compensation, and the compensation standard is also high. The compensation of work-related injury insurance is to realize social justice and ensure the minimum living standard of employees, so the compensation scope of work-related injury insurance is limited to material losses and does not involve mental damage compensation. The standard of compensation is determined by combining the laborer's own labor ability and the minimum social standard, and it is compensatory, not compensatory. Therefore, the amount of damages for general tort is higher than that for industrial injury insurance.
Two, how to deal with the applicable relationship between industrial injury insurance and civil tort damages, there are four main ways in the world:
1, select the mode. In other words, employees injured by industrial accidents can only choose one of tort damages and industrial injury insurance compensation. This model was also used in the early employee compensation in Britain and other Commonwealth countries, but it was later abolished.
2. Alternative mode. That is, employees who are injured by work-related accidents can only claim compensation from work-related injury insurance, but not from the infringer according to the provisions of the Tort Law.
3. There are both modes. In other words, employees who are victims of industrial accidents are allowed to receive compensation or compensation from employers and industrial injury insurance institutions at the same time, allowing them to obtain dual benefits. Countries that adopt this model mainly include Britain.
4. Supplementary mode. That is to say, employees who are victims of industrial accidents can claim tort damages and industrial injury insurance benefits at the same time, but their final income shall not exceed their actual losses. Countries adopting this model mainly include Japan, Chile and Northern Europe.
Thirdly, the relationship between industrial injury insurance compensation and tort compensation in the process of legislation in China.
In 2002, China promulgated the People's Republic of China (PRC) Law on Work Safety and the People's Republic of China (PRC) Law on Occupational Disease Prevention. There are two opinions on the understanding of the provisions of article 48 of the former and article 52 of the latter. One view is that after a production safety accident or occupational disease occurs, workers should first enjoy the corresponding compensation according to the stipulations of the labor contract and the social insurance contract for work-related injuries. If the industrial injury insurance money is not enough to compensate the victim for personal injury and economic loss, and compensation should be given according to the relevant civil laws, the laborer or his near relatives have the right to claim compensation from the production and business operation entity; Another point of view is that industrial injury insurance and civil compensation cannot replace each other, and employees can enjoy double protection. Obviously, the former view is a complementary model, and the latter view is a model of both.
In 2003, the State Council promulgated the Regulations on Industrial Injury Insurance. The regulations do not stipulate the applicable relationship between industrial injury insurance and civil damages. In recent years, the judicial interpretation of personal injury compensation issued by the Supreme People's Court has gradually raised the standard of damage compensation, resulting in a gradual increase in the amount gap between industrial injury insurance and industrial injury civil compensation. In this way, employees who do not participate in work-related injury insurance get more compensation than those who participate in work-related injury insurance.
In order to solve the applicable relationship between industrial injury insurance and industrial injury tort compensation, Article 12 of the Interpretation on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases issued by the Supreme People's Court in February 2003 stipulates: "If the employees of the employer who should participate in the overall planning of industrial injury insurance according to law suffer personal injuries due to industrial injury accidents, and the employees or their close relatives bring a lawsuit to the people's court to request the employer to bear civil liabilities, they shall be informed to abide by the provisions of industrial injury insurance. If the obligee claims compensation for personal injury caused by infringement by a third party other than the employer, the people's court shall support it. " In fact, it is "different inside and outside", that is, if the accident occurs inside the enterprise, the injured employee can only be treated as "alternative mode", that is, it can only be treated as "industrial injury insurance regulations", thus depriving the injured employee of the right to claim compensation from the employer as "personal injury". However, if the work-related injury is caused by a third party injury, we can adopt the "two-mode" and get double injury compensation according to the work-related injury and personal injury. However, this judicial interpretation has attracted criticism from the legal profession.
Four, the Supreme People's Court's "Interpretation on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases" stipulates that there are the following problems:
(1) The amount of compensation for civil damages is higher than that for work-related injury insurance, especially the mental consolation money for non-property damages. Injured employees are not allowed to make a request to the industrial injury insurance institution, which actually deprives them of the right to receive full compensation.
(2) At present, many employers have not participated in the overall planning of industrial injury insurance. These employees did not enjoy the treatment of work-related injury insurance, nor did they file civil compensation against the employer. They could only apply for labor arbitration first, and they could only file a lawsuit if they refused to accept the arbitration decision. After a long lawsuit, the best result is only compensation according to industrial injury insurance. If employers are unable to pay compensation, they will still get nothing.
(3) If the industrial accident is caused by the responsibility of a third party, the injured employee can obtain double indemnity from the industrial injury insurance institution and the infringer. For work-related accidents caused by the employer or other employees belonging to the same employer, compensation can only be made according to the treatment of work-related injuries. It is obviously unfair that there are different compensation results just because the responsible subjects are different.
(4) In the alternative mode, the employer's liability for industrial accidents is limited to paying insurance premiums, which actually exempts the employer from the liability for civil damages, so that it is impossible to punish the civil tortfeasors and actively prevent industrial accidents.
Verb (abbreviation of verb) the frontier of local legislation;
Excerpts from answers to some questions about the application of law in the trial of industrial injury compensation cases by Ganzhou Intermediate People's Court.
1, If the employee who did not participate in work-related injury insurance was injured at work, should the compensation obligee sue the employer for compensation?
Answer: Those who claim compensation in accordance with the Regulations on Work-related Injury Insurance will be told to handle it in accordance with the labor dispute handling procedures and regulations. In accordance with the provisions of the general principles of the civil law, the request for tort liability shall be accepted.
(Reference: Articles 52 and 53 of the Regulations on Work-related Injury Insurance, Article 19 of the Measures for Determining Work-related Injury issued by the Ministry of Labor and Social Security in September 2003, and Article 12 of the Judicial Interpretation of Personal Injury Compensation issued by the Supreme Court)
2. Should the right holder of compensation sue the employer for compensation if the employee is injured when working in an employer that does not have legal business qualifications, or if the child is injured when working in an employer?
Answer: Please refer to Q&A 1.
(Reference: Article 63 of the Regulations on Work-related Injury Insurance and the Measures of the Ministry of Labor and Social Security for One-time Compensation for Casualties of Illegal Employers)
3. If the laborer is injured in the process of labor, and the compensation obligee thinks that the treatment of industrial injury insurance is not enough to compensate his losses, should it be accepted to sue the employer for tort liability?
A: It should be accepted. If a worker is injured in the process of labor, and the treatment of industrial injury insurance obtained by the compensation obligee is not enough to compensate his losses, the insufficient part may request the employer to bear tort liability.
(Reference: Articles 106, 1 19 of the General Principles of the Civil Law, Article 52 of the Law on Prevention and Control of Occupational Diseases, Article 48 of the Law on Safe Production and Article 45 of the Provisions on Labor Protection in Workplaces Using Toxic Substances)
4. What should I do if the employee is injured in employment activities and the compensation obligee sues the natural person employer for compensation for work-related injuries?
A: According to the current labor law, the employment relationship between natural person employers and employees is not the one stipulated in the labor law and industrial injury insurance regulations. Employees who are injured in employment activities shall be compensated in accordance with the General Principles of the Civil Law and its judicial interpretation. Where the compensation obligee requests the employer to pay compensation for work-related injuries, it shall inform him of the right to change the claim. If the right holder of compensation does not change, it shall be tried as a case of personal injury compensation.
(Reference: Article 2 of the Labor Law, Article 2 of the Labor Contract Law, Articles 106,19 of the General Principles of the Civil Law, and Articles1kloc-0/of the Judicial Interpretation of Personal Injury Compensation)
5. Before the implementation of the Regulations on Industrial Injury Insurance, workers who did not participate in industrial injury insurance were injured or suffered from occupational diseases. After the implementation of the Regulations on Work-related Injury Insurance, is it acceptable for the obligee to sue the employer for work-related injury compensation?
A: Although the "Regulations" did not obtain the certificate of work-related injury (occupational disease) and the certificate of disability grade before implementation, it was handled according to the relevant regulations at that time and will no longer be accepted; Before the implementation of the "Regulations", an application for work-related injury identification has been put forward, and if the work-related injury identification institution has not completed the work-related injury (occupational disease) identification, it shall be informed to deal with it in accordance with the relevant provisions of the "Regulations"; If the work-related injury (occupational disease) identification has been completed but no compensation has been obtained, the notice shall be handled in accordance with the relevant provisions of labor disputes.
(Reference: Articles 64 and 52 of the Regulations on Industrial Injury Insurance)
6. Workers who have participated in work-related injury insurance are infringed by a third party at work, and the compensation obligee requires the infringing third party to bear the tort liability and the work-related injury insurance institution to give them work-related injury insurance benefits. What should I do?
Answer: Those who request industrial injury insurance institutions to grant industrial injury insurance benefits will be told to deal with it in accordance with the Regulations on Industrial Injury Insurance. The third party's claim for tort compensation shall be accepted. The industrial injury insurance institution shall not exempt or reduce the compensation liability of the infringing third party if it gives the compensation right holder the industrial injury insurance treatment.
(Reference: Paragraph 2 of Article 12 of the Judicial Interpretation of Personal Injury Compensation)
7. Workers who have not participated in work-related injury insurance are infringed by a third party at work, and the compensation obligee requires both the infringing third party to bear tort liability and the employer to pay work-related injury compensation. What should I do?
Answer: If the employer is required to pay compensation for work-related injuries, it shall inform it to handle it in accordance with the procedures and regulations for handling labor disputes. If a third party is requested to bear tort liability, it shall be accepted. The compensation for work-related injuries given by the employer shall not exempt or reduce the liability of the infringing third party.
(Reference: Paragraph 2 of Article 12 of the Judicial Interpretation of Personal Injury Compensation)
8. Workers who have not participated in work-related injury insurance are injured in the process of work, and the compensation obligee sues the employer for compensation. If the employer claims to exempt or reduce the liability for compensation on the grounds that the worker is at fault, should it be supported?
A: The compensation obligee requests the employer to bear the responsibility of compensation for work-related injuries. If the employer can prove that the employee has one of the circumstances specified in Article 16 of the Regulations on Work-related Injury Insurance, the liability for compensation may be exempted or mitigated.
If the obligee for compensation requests the employer to bear tort liability, and the employer can prove that the laborer caused damage intentionally or through gross negligence, the liability for compensation may be exempted or mitigated.
(Reference: Article 16 of the Regulations on Industrial Injury Insurance, Article 13 1 of the General Principles of the Civil Law, and Article 2 of the Judicial Interpretation of Personal Injury Compensation)
Six, lawyers practice to deal with the problems that employees need to pay attention to.
(a), accurately grasp the nature of the case, which is the key to decide how to claim.
To grasp the nature of the case, we need to find out the cause of the injury, that is, whether the victim's personal injury is man-made or accidental; Is it caused by the employer? Or caused by infringement by a third party; Is the labor relationship between the victim and the employer or the labor relationship? After these clarifications, the legal relationship of the dispute will be clear.
(2), find out the main responsibility.
The causes of harm are different, and the responsible subjects are also different. In the case of damage caused by multiple causes, don't leave out the responsible person; For the concurrence of compensation, it needs to be further clarified whether it is the concurrence of laws and regulations or the concurrence of responsibilities. It is forbidden to juxtapose different responsible persons with competing laws and regulations and bear a certain responsibility at the same time, which not only confuses different responsibilities, but is beneficial to the injurer and is not conducive to the victim's full compensation. In addition, it is necessary to distinguish between related parties and parties. Under normal circumstances, the employer has insured the life insurance for employees, but the employees are only the insured, neither the insured nor the beneficiary. At this time, he is only the relevant party of the insurance contract, not the party, and cannot claim the rights of the insurance contract.
(3) when the subject of responsibility is the same, choose the right of claim that is beneficial to my client.
In the case of the same subject of responsibility, it is difficult for employees to get compensation twice, whether in theory or in judicial practice, so choosing tort or work-related injury insurance compensation mainly depends on which compensation is higher. However, it should be noted that the compensation for industrial injury insurance cannot be compensated by negligence, while the compensation for tort damages can be reduced if the victim has a major fault, and can be compensated by negligence.
(4) Choose the local court with high jurisdiction standard. When the compensation standard of the accident place is different from that of the defendant's domicile place, it is advisable to claim rights from the local people's court with higher compensation standard. If there is little difference between the two standards, the court that accepts the case should be chosen on the principle of facilitating the victim's litigation.
Bian Xiao brings you the applicable relationship between industrial injury insurance compensation and tort compensation as shown above.
Further reading: How to buy insurance, which is good, and teach you how to avoid these "pits" of insurance.